Matter of Thomas v Mobley

Matter of Thomas v Mobley 2021 NY Slip Op 04023 Decided on June 23, 2021 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 23, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
FRANCESCA E. CONNOLLY
ANGELA G. IANNACCI
LINDA CHRISTOPHER, JJ.
2020-06449
(Docket No. V-3294-15/19B)

[*1]In the Matter of Shara Thomas, respondent,

v

Arnold Mobley, appellant.

Thomas J. Butler, Melville, NY, for appellant.

Darla A. Filiberto, Islandia, NY, for respondent.

Paraskevi Zarkadas, Centereach, NY, attorney for the child.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Victoria R. Gumbs-Moore, Ct. Atty. Ref.), dated January 21, 2020. The order, after a hearing, granted the mother's petition to modify a prior order of custody so as to permit her to relocate with the parties' child to Georgia, and awarded the father certain parental access. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.

ORDERED that the motion of Thomas J. Butler for leave to withdraw as counsel is granted, and he is directed to turn over all papers in his possession to the appellant's new counsel assigned herein; and it is further,

ORDERED that Heather Fig, Bayport Professional Center, 982 Montauk Highway, Bayport, New York 11705, is assigned as counsel to prosecute the appeal; and it is further,

ORDERED that new counsel shall serve and file a brief on behalf of the appellant within 90 days of the date of this decision and order on motion, and the respondent and the attorney for the child shall serve and file their briefs within 30 days after the brief on behalf of the appellant is served and filed. By order on certification of this Court dated September 2, 2020, the appellant was granted leave to prosecute the appeal as a poor person, with the appeal to be heard on the original papers, including a certified transcript of the proceedings, and on the briefs of the parties. The parties and the attorney for the child are directed to file one original and five duplicate hard copies, and one digital copy, of their respective briefs, and to serve one hard copy on each other (see 22 NYCRR 1250.9[a][4]; [c][1]).

The mother and the father are the parents of one child. The mother, who is the custodial parent, petitioned to modify a prior order of custody so as to permit her to relocate with the child to Georgia. After a hearing, the Family Court, by order dated January 21, 2020, granted the petition and awarded the father certain parental access. The father appeals.

The brief submitted by the father's assigned counsel pursuant to Anders v California (386 US 738) is deficient. Rather than acting as an advocate and evaluating whether there were any "nonfrivolous issues" (Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 256), that is, issues that are "arguable on the merits" (id. at 260 [emphasis added and internal quotation marks omitted]), [*2]appellate counsel has acted as "a mere advisor to the court on the merits of the appeal" (id. at 256; see Anders v California, 386 US at 744-745; People v Gonzalez, 47 NY2d 606). For that reason alone, new counsel must be assigned to represent the father on appeal.

Moreover, upon this Court's independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the mother met her burden of establishing, by a preponderance of the evidence, that the proposed relocation would be in the child's best interests (see Matter of Tropea v Tropea, 87 NY2d 727, 741).

DILLON, J.P., CONNOLLY, IANNACCI and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court